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How to start an appeal

Step 1 — Complete a Notice of Appeal

If you want to appeal against your conviction and/or the sentence imposed in the District or Supreme Court, you must complete a Form 26 — Notice of Appeal and file it in the Court of Appeal registry within the appeal time limit. On this form you will need to briefly outline your grounds of appeal.

What are grounds of appeal?

The grounds for an appeal are the reasons why you think the judge or jury made the wrong decision, or the trial wasn’t conducted according to the law. Grounds are the reasons why your conviction should be ‘quashed’ (declared invalid) or why your sentence should be reduced.

You can decide to appeal on the basis of one or several grounds of appeal. You must keep your grounds of appeal brief and to the point in the Form 26 — Notice of Appeal. You will get the opportunity to outline your grounds in more detail further into the appeals process.

What is an appeal against conviction?

A conviction is the decision made by a judge or jury that a person is guilty of an offence.

If you plead guilty you can appeal against your conviction in some circumstances. You only have one chance at an appeal against conviction.

Consider using some or all of the following grounds when appealing against your conviction. These grounds are general examples only and do not cover all possible issues, facts or matters that could be raised for a conviction appeal. Get legal advice about your possible grounds for appeal. Some examples are:

  • the verdict was not supported by the evidence
  • there was an error of law
  • there was an error in a ruling during trial
  • there was an error in the judge’s summing up to the jury
  • the verdict is unreasonable
  • there was an irregularity in the trial’s conduct
  • any other reason why you think you did not receive a fair trial.

The Court of Appeal looks at the grounds of appeal and has the power to make numerous orders and directions. The most common orders and directions are:

  • dismissing the appeal against conviction
  • sending the matter back to the originating court for retrial
  • quashing the conviction and directing a verdict of acquittal
  • substituting a verdict of guilty for a different offence.

What is an appeal against sentence?

A sentence is the penalty a person receives for committing an offence (eg 12 years’ jail time).

Unless the sentence is fixed by law (a ‘mandatory sentence’), a person convicted in the Supreme or District Court can seek leave (ask the court for permission) to appeal against their sentence.

Generally, a person might appeal their sentence if they have good grounds for thinking their sentence is too severe or wrong in law, and want it reduced or replaced with a different sentence altogether.

This may mean asking the court for:

  • a community based order instead of imprisonment
  • the head sentence to be reduced (the head sentence is the maximum sentence to be served, eg two years’ jail, suspended after nine months; in this example two years is the head sentence)
  • a parole date set earlier.

The most common ground of appeal is the sentence is ‘manifestly excessive’ (ie the penalty was too harsh and not appropriate for the crime).

A sentence may be considered manifestly excessive when:

  • the judge miscalculated the length of your sentence (eg the judge did not calculate your days in pre-sentence custody properly)
  • there is an error in law (eg the judge thought the maximum sentence was higher than it actually was)
  • a serious violent offence declaration was made, but should not have been made
  • the judge should not have recorded a conviction as part of your sentence.

The court will consider the grounds of appeal and may compare the sentence with other sentences imposed in similar cases. If the court believes the sentence is manifestly excessive, it will allow the appeal.

If the court allows the appeal, it may change the original sentence.

Tips for completing the Notice of Appeal

  • Use the sample Form 26 — Notice of Appeal in Sample documents and forms as a guide for completing your form. Blank forms are available from the Court of Appeal registry (see Step 2 — File your Notice of Appeal in How to start an appeal) or on the Queensland Courts website (www.courts.qld.gov.au on the forms page under the ‘Criminal Practice Rules 1999’ heading).
  • If you are in prison, the forms are available from any prison duty lawyer and the prison general manager’s office.
  • You must complete all pages and you must fill in all the required details on each page. Handwriting is acceptable.
  • If you are not appealing both your sentence and conviction, you must delete whichever type of appeal is not applicable.

What is the appeal time limit?

There is a strict time limit to file the Form 26 – Notice of Appeal. If you are appealing your sentence, you must file the form within one calendar month from the date of your sentence. If you are appealing against conviction, you must file the form one calendar month from your date of conviction. If you are in custody, the date you file the form with Sentence Management is taken to be the filing date in the Court of Appeal.

How do I work out my appeal time limit?

To work out your one calendar month time limit to appeal, add one calendar month plus one day onto your conviction/sentence date. For example, if you are appealing your sentence and were sentenced on 12 June 2018, you must file your Form 26 – Notice of Appeal on or before 12 July 2018.

It is important to remember the time frame for appealing against your conviction will start from the day you were actually convicted, not from the day you were sentenced. So if you were convicted on one day but sentenced on a later day, your one calendar month time frame for appealing your conviction will begin from the day you were convicted.

What if I need more time to appeal?

If you want to file the Form 26 – Notice of Appeal after the one calendar month appeal period has passed, you will also need to complete and file a Form 28 – Notice of application for extension of time within which to appeal at the same time (see Sample documents and forms). Blank forms are available from the Court of Appeal registry or on the Queensland Courts website (www.courts.qld.gov.au on the forms page under the ‘Criminal Practice Rules 1999’ heading).

You must write very good reasons in your Form 28 – Notice of application for extension of time within which to appeal to justify why the Court of Appeal should hear your appeal, such as why your appeal is likely to be successful. Even though you filed your Form 26 – Notice of Appeal outside the appeal period, the court will give you a hearing date to argue why your appeal should be heard. Legal aid is not usually granted for these hearings so you must be prepared to represent yourself at the hearing and to argue your actual appeal grounds at the time of the hearing.

The Court of Appeal will then decide whether you will be allowed to appeal, because your Form 26 – Notice of Appeal was not filed in time.

If the Court of Appeal grants you an extension, you may want to apply for legal aid for a lawyer to represent you for your appeal.

Step 2 — File your Notice of Appeal

You can file your form in person at the Court of Appeal registry during the registry’s business hours (8.30am – 4.30pm, Monday to Friday):

Queen Elizabeth II Courts of Law Complex
Court of Appeal registry
Ground floor, 415 George Street
Brisbane Qld 4000

Phone: (07) 3247 4702
Email: courtofappeal.registry@justice.qld.gov.au

Or you can file your form by mail to:

Court of Appeal registry
PO Box 15167
City East Qld 4002

If you are in custody, you can file your form with Sentence Management at the correctional centre and they will arrange for it to be filed at the registry. Make sure Sentence Management has received your form within the appeal time limit.

If you are representing yourself at your appeal, the registry will send you a letter to say they have received your form.

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